R.Bhattacharya, J.:-
(1) This is a revisional application filed by the petitioners amalendu ghosh, swapan ghosh, jyoti puri and miss ava ghosh for quashing or setting aside the proceedings started against them under section 107 of the code of criminal procedure by the opposite party prem pathak before the executive magistrate at ali - pore in misc. Case no. 102a of 1974.
(2) To be very short, the opposite party prem pathak filed a petition under section 107 144 of the code of criminal procedure before the executive magistrate at ali - pore, 24 - parganas on the allegation that the petitioners stopped supply of water to the flat of prem pathak which he is occupying under the tenancy in the name of his wife taken from the land lady who was the wife of amalendu ghosh, the petitioner no. 1 before this court. Of course his wife was a party in the application filed before the learned magistrate but the proceedings were not drawn up against her. It has been further alleged by prem pathak that on 27. 10. 74 the petitioners abused the opposite party meaning prem pathak and threatened serious violence. Again on 14. 11. 74 some of the petitioners and some others came to the flat of the opposite party and made an attempt to assault him. The occurrences gave rise to serious apprehension of danger to the personal safety of prem pathak and there was possibility of serious breach of peace according to the complainant. The petitioners, however, denied all those allegations made by the complainant opposite party. The learned magistrate after the filing of the application without taking any action called for a report from the police. The report was submitted by the police and on 16. 12. 74 the learned magistrate on seeing the police report drew up proceedings under section 107 of the code of criminal procedure against the petitioners before this court and asked them to show cause why they should not be ordered to execute a bond of rupees one thousand each with one surety of like amount for keeping peace for one year. Thereafter amalendu ghosh, one of the petitioners before this court appeared before the learned magistrate but others did not and thereafter they have filed the instant revisional application for quashing the proceedings drawn up by the learned magistrate under section 107 of the code of criminal procedure.
(3) Mr. Roy the learned advocate appearing on behalf of the petitioners supports this application on the ground that not only did the learned magistrate act illegally in drawing up the proceedings but also acted without jurisdiction and there has been a failure of justice and the abuse of the processes of court will be the further result of the proceedings. He wants that the proceedings should be quashed under section 401 of the code of criminal procedure 1973 or under article 227 of the constitution of india or under section 482 of the new code. Mr. Mukherjee learned advocate appears on behalf of the complainant opposite party, prem pathak, and mr. T. P. Bagchi is appearing on behalf of the state of west bengal as a rule was issued upon the district magistrate. Mr. Bagchi has also supported mr. Mukherjee who opposes the rule.
(4) The first question that was taken up by mr. Mukherjee was that this petition is not maintainable and the court will reject this application in view or the fact that the petitioners without submitting to the court below in obedience to the summons challenged the propriety of the order passed by the learned magistrate. In this connexion my attention has been drawn to the decision of this court in the case of lax - mi kant sen v. The state, reported in 75 c. W. N, at page 601. As i have already stated in spite of the service of notice except the petitioner no. 1 no other petitioner appeared before the learned magistrate. In the case referred to by mr. Mukherjee it is clearly stated that there has been a wholesome and well - known practice of this court that before a party comes up before the high court, he must submit to the process of the court below and then challenge the propriety of any order in any revisional application. I asked mr. Roy whether all his clients appeared before the learned magistrate in the meantime and mr. Roy practically wanted an adjournment so that they might appear before the learned magistrate. I allowed the prayer and subsequently he filed a certified copy of the order showing that all the petitioners had appeared before the learned magistrate. In this view of the matter i think when the petitioners submitted to the court below that question does not arise and the revisional application should not be thrown out on that ground.
(5) The first and foremost contention of mr. Roy appearing on behalf of the petitioners is that the order passed by the learned executive magistrate drawing up proceedings under section of the code of criminal procedure is without jurisdiction because it does not comply with the essential ingredients mentioned in section 107 read with section 111 of the code of criminal procedure, 1973. Mr. Mukherjee, as against that, has submitted that mr. Roy cannot challenge that order dated 16. 12. 74 as it is hit by section 397 (2) of the code of criminal procedure. Mr. Mukherjee's contention is that as the said order is an interlocutory order that cannot be challenged before the high court in revisional application either for the quashing the proceedings or for setting aside the order. The question, therefore, is whether the said order dated 16. 12. 74 is an interlocutory order as contemplated under subsection (2) of section 397 of the code of criminal procedure 1973. The word 'interlocutory' means according to the import of the dictionary 'intermediate' and the interlocutory order is one passed during the progress of the proceedings, that is to say, interlocutory order must be an order passed after the initiation of the proceedings and before the final order disposing of the matter. The record shows that after the filing of the application, the learned magistrate did not take any active steps upon that application but called for a police report and on 16. 12. 74 he, by the impugned order, drew up proceedings under section 107 of the code of criminal procedure against the petitioners. Clearly, therefore, in my view this order initiated or started the proceedings and hence it was the initial order which started the proceedings under section 107 of the code of criminal procedure. In my view, therefore, the order which started the proceedings and the order which terminates the proceedings, that is to say, the initial order and the final order cannot be interlocutory orders. Interlocutory orders are those which are passed during the progress of the proceedings, that is to say, after the initial order and before fore the final order. In this view of the matter, i cannot accept the contention of mr. Mukherjee that the order dated 16. 12. 74 which initiated or started the proceedings under section 107 of the code of criminal procedure cannot be challenged. Like the final order the initial order as well can be challenged in the revisional application if not otherwise barred by law. I, therefore, hold that the instant application is entertain able under section 401 of the code of criminal procedure.
(6) The next question that has been agitated by mr. Mukherjee is that in a revisional application under section 401 the proceedings cannot be quashed. As i have already indicated earlier, the order complained against is the initial order which is the basis or the starting point of the proceedings under section 107 and if this order is set aside or found illegal or without jurisdiction then certainly the entire proceedings based upon it are automatically crumbled down and practically quashed. If for ends of justice this court feels that the order which starts a proceeding is illegal, in my view, it has got inherent jurisdiction to quash the proceedings being useless and being impediment to justice. Of course, there is another provision for quashing the proceedings and that will appear in section 482 of the new code of criminal procedure of 1973. Previously this inherent power was mentioned in section 561a of the code of criminal procedure, 1898. According to section 482 nothing in the code of criminal procedure shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under the code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This is a very wide power, if not otherwise barred by law. If this court feels that the order drawing up proceedings is without jurisdiction, certainly if the said proceedings be allowed to continue, that will be an instance of abuse of the process of court and wastage of court's time doing no effective justice to any of the parties. It is no use allowing a proceeding to continue being illegal or without jurisdiction. If it is found in the instant case that the order in question was passed without jurisdiction or against law, it would be a fit case to be interfere with by this court so that unnecessarily it may not be allowed to proceed without any useful purpose. The quashing of a proceeding may also be done under article 227 of the constitution of india. In that case also it has got to be seen whether the proceeding was started without jurisdiction and without the basis of any law and whether the continuance of that proceedings would be a. Failure of justice and also an abuse of processes of court. In my opinion, therefore, if it is found that the order complained against was passed by the learned magistrate beyond his jurisdiction and not authorised by law, surely the proceeding is liable to be quashed under either of the provisions i have just mentioned. During arguments a question arose whether sufficient court - fees were paid on the application when there is the mention of article 227 of the constitution. Mr. Roy immediately filed court - fees to the extent of rupees twenty meant for an application under article 227 of the constitution and that i have accepted besides the court - fees paid as required in revisional application.
(7) Mr. Roy's contention is that before fore the magistrate draws up proceedings under section 107 of the code of criminal procedure, it is incumbent on him to express his opinion that there is sufficient ground for proceeding and section says that if the magistrate is informed that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, he may require such person to show cause why he should not be ordered to execute a bond as mentioned in that section provided that in his opinion there is sufficient ground for such proceeding. The grievance of mr. Roy is that in the order drawing up proceedings there is no indication whatsoever that the learned magistrate was of the opinion that there was ground for proceedings, that is to say, to draw up of proceedings under section 107. Mr. Roy says that nowhere in the order does he says that he was of the opinion for drawing the proceedings and no ground has been indicated for such proceeding. In this connexion section 111 of the code of criminal procedure is to be looked into. That section says how order to draw up proceedings should be made. According to this section when a magistrate acting under sections 107, 108, 109 or 110 deems it necessary to require any person to show cause under those sections, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) , required. According to this section, therefore, it is essentially required as enjoined by law that while drawing up the proceedings under section 107, the magistrate shall in the order set forth the substance of the information received in writing amongst other things. Sections 107 and 111 of the code of criminal procedure, 1973, demand that the following essential requirements must be fulfilled before the proceeding under section 107 is drawn up : - 1. That the magistrate must get some information, 2. That the information shall relate to the breach of peace or disturbance of public tranquility or any wrongful act that may lead to probable breach of peace or disturbance of public tranquility, 3. That the magistrate must be of opinion that there is sufficient ground for proceedings under section 107, 4. That in the order drawing up the proceedings must be in writing, and 5. That in that order the magistrate must set forth the substance of the information received amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties, if any, required.
(8) Unless all the ingredients mentioned above are complied with, there cannot be any valid proceedings under section 107 of the code of criminal procedure and if the learned magistrate acts otherwise then that order would be illegal and the learned magistrate would be acting without jurisdiction because unless all these conditions are fulfilled the learned magistrate cannot be said be vested with the jurisdiction to draw up proceedings under section 107 of the code of criminal procedure and as such he shall have no power to initiate such proceedings.
(9) In the present case we find that in the order dated 16. 12. 74 the learned magistrate did not express his opinion about the proceeding to say that he was of the view that there was sufficient ground for such proceeding, neither was any ground for proceeding under section 107 cr. P. Code indicated. The learned magistrate has not set forth the information received. There is no indication as to the nature of information he got from the police report. There is no indication that he actually applied his mind to the facts and circumstances of this case and there is no statement that he was of the opinion that proceedings should be drawn up. The mind of the learned magistrate does not reflect in the order in question. Mr. Mukherjee had contended in this connexion that in the order there is a reference of the police report and, therefore, it may be presumed that the learned magistrate had gone through the police report and was of the opinion that the proceedings should be drawn up and there were grounds for drawing up of the proceedings. Mere reference of the police report will not matter unless the learned magistrate clearly expresses his opinion in the order. The order must be a speaking order. In this connexion my attention has been drawn to the decision of this court in the case of birdhaj roy v. The stale, reported, in 57 c. W. N, at page 251. In that case also the principles just followed by me were indicated. Mr. Mukherjee has also drawn my attention to the notice served upon the petitioners. That was a notice sent to the opposite parties after the proceedings were drawn up under section 107. In that notice it was stated that as it had been made to appear to the learned magistrate from the petition as also from the police report that they were interfering with the supply of filtered water and threatening the complainant and the members of his family with personal violence, bodily injuries, molestation and mischief and whereas there was an apprehension of breach of peace, the proceedings were drawn up against the petitioners who were opposite parties before the magistrate and they were directed to appear before the court and to show cause. The general allegation made in the notice is not a compliance with the law. This notice was issued on the basis of the order passed by the learned magistrate drawing up the proceedings. The notice was not an order. The notice was drawn up and issued subsequent to the order starting the proceedings. Unless the allegations are mentioned in the order mere insertion of certain allegations in the notice will not prove that the learned magistrate applied his mind and formed his opinion according to law as indicated earlier before passing there for. That notice cannot be said to be in pursuance of the initial order. The statement in the notice is no compliance with section 107 read with section 111 of the cr. P. Code.
(10) In view of my discussions above, i have no doubt to hold that the order passed by the learned magistrate on 16. 12. 74 which has been challenged before this court was not passed according to law and that the learned magistrate acted out of jurisdiction not being vested with powers to draw up the proceedings under section 107 of the code of criminal procedure against the petitioners. When i find that the proceedings drawn up by the learned magistrate are without jurisdiction and illegal and it is useless to allow continuance of the proceedings, the prayer for quashing the proceedings becomes inevitable for ends of justice to avoid the abuse of the process of this court, to prevent wastage of court's time and also to relieve the parties from the teeth of unnecessary harassment,
(11) Now the question is under which provision of law i shall quash the proceedings. In my view, as i have already stated this can be done under section 482 of the code of criminal procedure, 1973. Under section 401 of the said code and also under article 227 of the constitution of india. In the instant case, however, i feel inclined to allow this application and quest the proceedings in question under section 482 of the code of criminal procedure, 1973.
(12) In the result, the application succeeds and the rule is made absolute. The proceedings under section 107 of the code of criminal procedure started against the petitioners by the order dated 16. 12. 74 are hereby quashed. The petitioners, if on bond before the learned magistrate, are hereby discharged from such bond. Rule made absolute.